STATE OF NEW JERSEY VS. RAJAHN BROWN (97-01-0277 AND 97-06-2871, ESSEX COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4704-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RAJAHN BROWN,
Defendant-Appellant.
________________________________
Submitted May 31, 2018 – Decided June 12, 2018
Before Judges Haas and Rothstadt.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment Nos.
97-01-0277 and 97-06-2871.
Joseph E. Krakora, Public Defender, attorney
for appellant (Suzannah Brown, Designated
Counsel, on the brief).
Robert D. Laurino, Acting Essex County
Prosecutor, attorney for respondent (Kayla
Elizabeth Rowe, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant appeals from the May 8, 2017 Law Division order
denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. We affirm.
After an Essex County grand jury returned two indictments
charging defendant with a total of four drug-related offenses, he
pled guilty to two counts of third-degree possession of cocaine
with intent to distribute it, N.J.S.A. 2C:35-5(b)(3). On April
17, 1998, the trial court sentenced defendant to concurrent four-
year terms on the two offenses. The remaining two charges were
dismissed.
More than eighteen years later, on October 28, 2016, filed
his petition for PCR. In his petition, defendant alleged that his
plea attorney failed to advise him that if he committed federal
offenses in the future, he would be subject to enhanced penalties
because of his State convictions.
Following oral argument, Judge Marysol Rosero rendered a
thorough oral opinion denying defendant's petition for PCR. The
judge found that an evidentiary hearing was not required because
there was no dispute as to any of the material facts underlying
defendant's petition. In this regard, the judge accepted
defendant's contention that his plea attorney did not tell him
that if he continued to commit crimes, he would face enhanced
punishment.
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Citing State v. Wilkerson, 321 N.J. Super. 219, 223 (App.
Div. 1999), the judge held that defendant's plea counsel had no
duty to give advice concerning the sentencing features of other
state or federal laws. Thus, the judge concluded that defendant
failed to satisfy the two-prong test of Strickland v. Washington,
466 U.S. 668, 687 (1984), which requires a showing that plea
counsel's performance was deficient and that, but for deficient
performance, the result would have been different.
In addition, Judge Rosero noted that Rule 3:22-12(a)(1)
precludes PCR petitions filed more than five years after entry of
a judgment of conviction unless the delay was "due to defendant's
excusable neglect and . . . there is a reasonable possibility that
if the defendant's factual assertions were found to be true
enforcement of the time bar would result in a fundamental
injustice[.]" Because defendant's plea attorney was not required
to advise him of the enhanced sentencing features of federal
criminal law at the time of his plea to the State charges, the
judge held that there would be no "fundamental injustice" in
applying the five-year time bar to defendant's petition, which was
filed more than thirteen years out of time. This appeal followed.
On appeal, defendant argues that the trial court erred by:
(1) ruling that his petition was time-barred; and (2) denying the
petition without an evidentiary hearing. We disagree.
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The mere raising of a claim for PCR does not entitle the
defendant to an evidentiary hearing. State v. Cummings, 321 N.J.
Super. 154, 170 (App. Div. 1999). Rather, trial courts should
grant evidentiary hearings and make a determination on the merits
only if the defendant has presented a prima facie claim of
ineffective assistance of counsel, material issues of disputed
fact lie outside the record, and resolution of those issues
necessitates a hearing. R. 3:22-10(b); State v. Porter, 216 N.J.
343, 355 (2013).
To establish a prima facie claim of ineffective assistance
of counsel, the defendant
must satisfy two prongs. First, he must
demonstrate that counsel made errors so
serious that counsel was not functioning as
the counsel guaranteed the defendant by the
Sixth Amendment. An attorney's representation
is deficient when it [falls] below an
objective standard of reasonableness.
Second, a defendant must show that the
deficient performance prejudiced the defense.
A defendant will be prejudiced when counsel's
errors are sufficiently serious to deny him a
fair trial. The prejudice standard is met if
there is a reasonable probability that, but
for counsel's unprofessional errors, the
result of the proceeding would have been
different. A reasonable probability simply
means a probability sufficient to undermine
confidence in the outcome of the proceeding.
[State v. O'Neil, 219 N.J. 598, 611 (2014)
(citations omitted).]
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To set aside a guilty plea based on ineffective assistance
of counsel, "a defendant must show that (i) counsel's assistance
was 'not within the range of competence demanded of attorneys in
criminal cases;' and (ii) 'that there is a reasonable probability
that, but for counsel's errors, [the defendant] would not have
pled guilty and would have insisted on going to trial.'" State
v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (alteration in original)
(quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)). We review
a judge's decision to deny a PCR petition without an evidentiary
hearing for abuse of discretion. See R. 3:22-10; State v.
Preciose, 129 N.J. 451, 462 (1992). We discern no abuse of
discretion here.
Judge Rosero correctly relied upon our decision in Wilkerson,
where we held there is "no constitutional requirement that a
defense attorney must advise a client or defendant that if he or
she commits future criminal offenses that there may be adverse
consequences by way of enhancement of the penalty" in connection
with a plea agreement. 321 N.J. Super. at 223. Instead, we noted
that "generally individuals should be aware as a matter of common
sense that a continuing course of antisocial or criminal conduct
may lead to increased penalties." Ibid. Because defendant's plea
attorney was therefore not ineffective for failing to provide this
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advice, defendant was unable to meet either of the Strickland
prongs.
Although Judge Rosero denied defendant's petition on its
merits, she also properly found it was time-barred under Rule
3:22-12(a)(1). Because defendant did not present a prima facie
case of ineffective assistance, he is unable to demonstrate that
applying the time bar would result in a "fundamental injustice."
Finally, an evidentiary hearing was not required under the
circumstances presented in this case. Such a hearing is only
required "when there are disputed issues of material facts related
to the defendant's entitlement to PCR, particularly when the
dispute regards events and conversations that occur off the record
or outside the presence of the judge." Porter, 216 N.J. at 354.
Here, there was no dispute as to any material fact relative to
defendant's petition.
Affirmed.
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